Tennessee Divorce Residency Requirements



Tennessee Divorce Residency Requirements

In order to file your Petition for Divorce in Tennessee, you must make sure the Domestic Relations Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Tennessee residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

The spouse filing for the divorce must be a resident of the state at the time the grounds for divorce took place. If the grounds took place outside the state of Tennessee, one of the spouses must be a resident for 6 months prior to filing. The divorce shall be filed in the county in which both spouses reside if they are both residents; or the county in which the respondent resides if he or she is a resident; or the county in which the petitioner resides. (Tennessee Code - Volume 6A, Title 36, Sections 36-4-104 and 36-4-105)

Tennessee Grounds for Divorce

The Petition for Divorce is the initial document filed with the Tennessee court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The Tennesse court may grant a divorce on one of the following grounds:

No-Fault Based Grounds:

(1) Irreconcilable differences (2) living separate and apart without cohabitation for 2 years when there are no minor children.

Fault Based Grounds:

(1) Impotence; (2) adultery; (3) Incarceration or felony conviction; (4) alcohol and drug addiction; (5) wife is pregnant by another at the time of marriage without husband’s knowledge; (6) willful desertion for one year; (7) bigamy; (8) endangering the life of the spouse; (9) conviction of an infamous crime; (10) refusing to move to Tennessee with a spouse and willfully absenting oneself from a new residence for 2 years; (11) cruel and inhuman treatment; (12) indignities that make the spouse’s life intolerable; and (13) abandonment, neglect, or banning the spouse from the home. (Tennessee Code - Volume 6A, Title 36, Sections 36-4-101 and 36-4-103)

Every divorce case that is filed in the state of Tennessee must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions

Tennessee Simplified Divorce Procedures

If the divorce is based on irreconcilable differences, the spouses may enter into a notarized marital settlement agreement. The agreement must: (1) make specific reference to a pending divorce by the name of the court and the docket number or (2) state that the respondent is aware that a divorce will be filed for in the state of Tennessee; and (3) state that the respondent waives service of process and waives filing an answer. The waiver of service will be valid for 120 days after the respondent signs the agreement and will constitute a general appearance by the respondent and give the court personal jurisdiction over the respondent and will constitute a default judgment. The petition for divorce must have been on file for over 60 days before a hearing will be held if the spouses have no minor children and 90 days if they have any minor children. The spouses must make adequate and sufficient provisions in their marital settlement agreement for the care and custody of any minor children and for an adequate settlement of their property. The spouses may also make provisions in their settlement for alimony. A final decree may be entered without any corroborating proof or testimony by the petitioner or respondent. If the respondent contests or denies that there are irreconcilable differences, a divorce may not be granted on those grounds, unless there is a valid marital settlement agreement. Some counties may require the respondent to sign any appearance and waiver form before the court clerk for it to be valid. In addition, in any petition for divorce, the wife’s maiden name must be stated and the race and color of each spouse must be stated. Financial affidavits may also be required. [Tennessee Code Annotated; Volume 6A, Title 36, Sections 36-4-103 and 35-4-116 and Tennessee Rules of Court].

Each state has its own unique filing procedure. When filing for divorce in Tennessee, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court.

Tennessee Property Division Factors

In Tennessee, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the County Court within the Final Decree of Divorce.

Tennessee is referred to as an "equitable distribution" state. When the parties are unable to reach a settlement, the County Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the County Court to be fair.

Tennessee defines separate property as: (A) acquired prior to marriage; (B) by gift or inheritance; (C) in exchange for any separate property, or (D) obtained from income or appreciation of separate property, if the other spouse did not contribute to the preservation and appreciation.

Tennessee defines marital property as: (A) any property acquired during the marriage by either spouse; (B) any increase in value of any property to which the spouses contributed to the upkeep and appreciation; and (3) any retirement benefits.

The court will consider, with taking into account marital fault, the following factors when dividing the property: (A) the contribution of each spouse to the acquisition, preservation, appreciation, or dissipation of the marital property, including the contribution of each spouse as homemaker, wage-earner, or parent; (B) the value of each spouse’s property at the time of the marriage and at present; (C) the economic circumstances of each spouse at the time the division of property is to become effective; (D) the length of the marriage; (E) the age and health of the spouses; (F) the vocational skills of the spouses; (G) the liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income; (H) the federal income tax consequences of the court’s division of the property; (I) the present and potential earning capability of each spouse; (J) the tangible and intangible contributions made by 1 spouse to the education, training, or increased earning power of the other spouse; (K) the relative ability of each party for the future acquisition of capital and income; (L) the employability and earning capacity of the spouses; (M) any social security benefits; and (N) any other factors necessary to do equity and justice between the spouses. (Tennessee Code - Volume 6A, Title 36, Sections 36-4-121)

Since Tennessee is an "Equitable Distribution" state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does "equitable" mean? Equitable can be defined as "what is fair, not necessarily equal." To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Tennessee Spousal Support/Maintenance/Alimony Factors

In Tennessee the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the County Court will order support from one spouse to the other on a case-by-case basis as follows:

When determining the amount of support and whether or not it is to be a temporary or permanent order, the court will consider the following factors: (1) the value of any separate or marital property owned by the spouses; (2) whether the spouse seeking alimony is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (3) the need for sufficient education and training to enable the spouse to find appropriate employment; (4) the standard of living while married; (5) the length of the marriage; (6) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market and any retirement, pension, or profit-sharing benefits; (7) the needs and obligations of each spouse; (8) the contributions each spouse made to the marriage and the acquisition of marital assets; (9) the relative education and training of the spouses and the opportunity of each party to secure education and training; (10) the age of the spouses; (11) the health condition of the spouse; (12) the tax ramifications of any award; (13) the usual occupation of the spouses during the marriage; (14) the job skills and employability of the spouse seeking alimony; (15) the marital conduct of the spouses during the marriage; and (16) any other factor the court deems just and equitable. (Tennessee Code - Volume 6A, Title 36, Sections 36-4-101)

Tennessee Child Custody Factors

In Tennessee, the court will take into consideration the following primary factors when determining what custody arrangement is best for a child:

(a) the love, affection, and emotional ties between the parents and child;

(b) the importance of continuity and the length of time the child has lived in a stable and satisfactory environment;

(c) whether there has been any domestic violence or physical or mental abuse to the child, spouse, or any other person and whether a parent has had to relocate to avoid such violence;

(d) the stability of the family unit;

(e) the mental and physical health of the parents;

(f) the home, school, and community record of the child;

(g) the reasonable preference of a child over 12 years of age;

(h) the character and behavior of any person who lives in or visits the parent’s home and such person’s interactions with the child; and

(i) each parent’s past and potential performance of parenting duties, including a willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent. (Tennessee Code - Volume 6A, Title 36, Sections 36-4-106)

In Tennessee, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Tennessee Child Support Factors

Either or both of the parents may be ordered to provide child support. The factors for consideration are as follows: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional conditions and educational needs of the child; (4) the financial resources, needs, and obligations of the parents; (5) the earning capacity of each parent; (6) the age and health of the child; (7) the monetary and non-monetary contributions of each parent to the well-being of the child; (8) any pension or retirement benefits of the parents; (9) whether the non-custodial parent’s visitation is over 110 days per year or under 55 days per year; and (10) any other relevant factors. The court may require that health insurance coverage be provided for the child or that the spouse to who is to pay the support maintain a life insurance policy for the benefit of the child. The court can require that the child support payments be paid through the clerk of the court. The posting of bond, wage assignments, and wage withholding may also be ordered. There are official Tennessee Supreme Court child support guidelines which are presumed to be correct unless there is a showing that the amount would be unjust or inappropriate under the particular circumstances of the case. Standardized forms for determining child support are also available. [Tennessee Code Annotated; Volume 6A, Title 36, Sections 36-5-101 and 36-5-501 and Tennessee Court Rules Annotated, Supreme Court Rules; Tennessee Uniform Administrative Rules Act, Title 4, Chapter 5].

Tennessee child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Tennessee child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Tennessee child support deviation factors that may be applicable to the situation.

Tennessee Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted upon a finding by the court that the visitation is in the child’s best interest. Title 36, Section 36-6-301 (T.C.A. §36-6-301).

When Adoption Occurs: Visitation rights terminate upon adoption unless the adoption is by a stepparent or other relative of the child.

Child Custody Statutes: Best interest of child "as the welfare and interest of the child or children may demand." T.C.A. §36-6-101 et seq.

Tennessee Military Divorce Laws

A Tennessee military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Tennessee Divorce Proceedings

There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Tennessee court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Tennessee court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in Tennessee

- You or your spouse must be stationed in Tennessee

Grounds for Tennessee Military Divorce

The grounds for a military divorce in Tennessee are the same as a civilian divorce.

Dividing the Property

Along with the normal Tennessee property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Tennessee, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Tennessee child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Tennessee Child Support Guidelines

The Tennessee child support guidelines "at a glance" provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Tennessee child support order.

Tennessee Child Support Guidelines

• Income Share Model *: NO

• Percent of Income Model *: YES

• Worksheets Available: YES

• Extraordinary Medical Expenses Add on: NO

• Childcare Add on: NO

• Secondary Education Support: NO

• UIFSA: NO

* Percent of Income Model: Tennessee utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Tennessee Child Support Definitions

(1) Gross income.

(a) Gross income shall include all income from any source (before taxes and other deductions), whether earned or unearned, and includes but is not limited to, the following: wages, salaries, commissions, bonuses, overtime payments, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, benefits received from the Social Security Administration, i.e., Title II Social Security benefits, workers compensation benefits, whether temporary or permanent, judgments recovered for personal injuries, unemployment insurance benefits, gifts, prizes, lottery winnings, alimony or maintenance, and income from self-employment. Income from self-employment includes income from business operations and rental properties, etc., less reasonable expenses necessary to produce such income. Depreciation, home offices, excessive promotional, excessive travel, excessive car expenses, or excessive personal expenses, etc. should not be considered reasonable expenses. In kind remuneration must also be imputed as income, i.e. fringe benefits such as a company car, the value of on-base lodging and meals in lieu of BAQ and BAS for a military member, etc.

(b) Variable income such as commissions, bonuses, overtime pay, dividends, etc., should be averaged and added to the obligor’s fixed salary.

(c) Gross income does not include the following: child support payments received by either parent for the benefit of other children; benefits received from means-tested public assistance programs otherwise exempt by federal law or regulation such as aid to families with dependent children (AFDC) and food stamps of Supplemental Security Income (SSI).

(d) If an obligor is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by educational level and/or previous work experience.

(e) When establishing an initial order and the obligor fails to produce evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support of ability to support in prior years), and the court has no other reliable evidence of the obligor’s income or income potential, gross income for the current and prior years should be determined by imputing annual income of $25,761. This figure represents an average of the median annual income for Tennessee families as provided by the 1990 U.S. Census of Income and Poverty data for Tennessee Counties.

(f) When cases with established orders are reviewed for adjustment and the obligor fails to produce evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support), and the court has no other reliable evidence of the obligor’s income or income potential, the court should enter an order to increase the child support obligation by an increment not to exceed ten percent (10%) per year for each year since the support order was entered or last modified.

(2) Net income is calculated by subtracting from gross income of the obligor’s FICA (6.2% Social Security + 1.45% Medicare for regular wage earners and 12.4% Social Security + 2.9% Medicare for self-employed, as of 1991, or any amount subsequently set by federal law as FICA tax), the amount of withholding tax deducted for a single wage earner claiming one withholding allowance (copies of appropriate table will be provided to courts with guidelines), and the amount of child support ordered pursuant to a previous order of child support for other children. Payment may be ordered to be weekly, biweekly (every two weeks), semi-monthly, or monthly. In calculating net income for obligors who are under federal or railroad retirement programs or any other mandatory retirement plan which operates in lieu of the Social Security retirement program, the retirement contribution up to the current FICA tax rate should be subtracted from the gross income. Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor’s net income or in calculating the guideline amount. In addition, these children should not be considered by the court as a reason for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).

(3) Percentage of Net Income. After determining the net income of the obligor, that amount is to be rounded up to the next dollar. That amount is then multiplied by the percentage below that corresponds to the number of children for whom support is being set in the instant case. The percentages are:

No. of Children --- % of Income

1 --- 21%

2 --- 32%

3 --- 41%

4 --- 46%

5 or more --- 50%

CRITERIA FOR DEVIATION FROM GUIDELINES.

(1) Since these percentage amounts are minimums, the court shall increase the award calculated in for the following reasons:

(a) If the obligor is not providing health insurance for the child(ren), an amount equal to the amount necessary for the obligee to obtain such insurance shall be added to the percentage calculated in the above rule.

(b) If the child(ren) is/are not staying overnight with the obligor for the average visitation period of every other weekend from Friday evening to Sunday evening, two weeks during the summer and two weeks during holiday periods throughout the year, then an amount shall be added to the percentage calculated in the above rule to compensate the obligee for the cost of providing care for the child(ren) for the amount of time during the average visitation period that the child(ren) is/are not with the obligor

(c) Extraordinary educational expenses and extraordinary medical expenses not covered by insurance shall be added to the percentage calculated in the above rule.

(d) Any other extraordinary expenses for the child(ren) may justify increasing the support calculated in the above rule if the court finds that equity requires it.

(e) In cases where initial support is being set, a judgment must be entered to include an amount due for monthly support from the date of the child s birth or date of separation or date of abandonment whichever is appropriate, until the current support order is entered. This amount must be calculated based upon the guidelines using the average income of the obligor over the past two years and is presumed to be correct unless rebutted by either party. An amount should be included in the order to reduce the arrears judgment on a monthly basis within a reasonable time.

(f) Valuable assets and resources (expensive home or automobile which seem inappropriate for the income claimed by the obligor) of the obligor should be considered for the purpose of imputing income and increasing the support award in any case if the court finds that equity requires it.

(2) Deviation from the guidelines may be appropriate in other cases when the court finds it is in the best interest of the child(ren) including, but not limited to, the following:

(a) In cases where the Department of Human Services has taken custody of the child(ren) pursuant to a neglect, dependent, or abuse action and where the parent(s) is/are making reasonable efforts to secure the return of the child(ren) to the family; and/or

(b) In cases where physical custody of the child(ren) is more equally divided between the parties than occurs in a situation where one party has an average amount of overnight visitation.

(3) The court must order child support based upon the appropriate percentage of all net income of the obligor, but alternative payment arrangements may be made for the award from that portion of net income which exceeds $6,250. When the net income of the obligor exceeds $6,250 per month, the court may establish educational or other trust funds for the benefit of the child(ren) or make other provisions in the child(ren)’s best interest; however, all of the support award amount based on net income up through $6,250 must be paid to the custodial parent.

(4) In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the child(ren) of the obligor’s current family, [child(ren) living in the home with the obligor for whom the obligor is legally responsible] deviation from the guidelines may be considered in order to achieve equity between the parties when the court so finds.

(5) In deviating from the guidelines, primary consideration must be given to the best interest of the child(ren) for whose support the guidelines are being utilized.

Tennessee Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Tennessee Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:

Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:

Respondent

The spouse who does not initiate the Divorce with the court.

Court Name:

In the __________ Court of __________ County, Tennessee

The proper name of the court in which a Divorce is filed in the state of Tennessee. Each jurisdictional court typically has a domestic relations or a family law department or division.

Child Support Enforcement Website:



The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:

In Re the Marriage of

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:

Petition for Divorce

The title and name of the legal document that will initiate the Tennessee Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:

Decree of Divorce

The title and name of the legal document that will finalize the Tennessee Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:

Office of the Clerk of the County Circuit Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation (divorce from bed and board) are the same as for a divorce. If the legal separation has been in effect for 2 years and the spouses have not reconciled, either spouse may request that the separation be converted to an absolute divorce. [Tennessee Code Annotated; Volume 6A, Title 36, Sections 36-4-102 and 36-4-119].

Property Distribution:

Equitable Distribution

The applicable Tennessee law that will dictate how property and debt is to be divided upon Divorce.

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